Pallbearers load the caskets in hearses after the funeral for William F. Nadvornik and Margaret Nadvornik at the St. Andrews Episcopal Church in Livonia, Mich., Friday, Oct. 7, 2005. The Nadvorniks, both 80, were two of the 19 elderly tourists from Michigan who died in the Ethan Allen boating accident in New York last weekend. The boat tour was part of a fall foliage trip that they had signed up for with one of their travel clubs. (AP Photo/Carlos Osorio) less

Pallbearers load the caskets in hearses after the funeral for William F. Nadvornik and Margaret Nadvornik at the St. Andrews Episcopal Church in Livonia, Mich., Friday, Oct. 7, 2005. The Nadvorniks, both 80, ... more

Photo: CARLOS OSORIO

Lawyer says court got it wrong

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ALBANY — First they lost their case. Then they lost any recourse.

That's what happened to the men and women who sued the state for failing to properly inspect the Ethan Allen tour boat, which capsized on Lake George in 2005, killing 20 of their loved ones and injuring several others.

New York's highest court unanimously dismissed the lawsuit Thursday, agreeing with the state's argument that its inspectors could not be sued because of governmental immunity — even though the inspectors repeatedly certified the boat as safe for 48 passengers when federal safety investigators found it was safe for no more than 14. And in doing so, the Court of Appeals' decision freely stated that "the upshot is that, regardless of any negligence on the part of the state, the victims of this disastrous wreck are essentially left without an adequate remedy."

"This decision gives me heartburn," said Charles Herd, a Houston-based maritime lawyer with the Lanier Law Firm, which operates in New York state. "What's the point of having inspectors perform inspections if there is not going to be any consequences when those inspections are not going to be performed properly?"

The court decision, written by Chief Judge Jonathan Lippman, stated there were three ways in which the families could have sued the state: if the state violated a "statutory duty enacted for the benefit of a particular class of persons"; if it voluntarily assumed a duty that "generates justifiable reliance by the person who benefits from the duty"; or if the state assumed "positive direction and control in the face of a known, blatant and dangerous safety violation."

Herd said he believes the Ethan Allen victims' suit filed against the state met the criteria for the first two exceptions. He said he believed the passengers clearly were a "particular class of persons" since they were the ones on the boat and they clearly relied on the inspectors.

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Asked if the decision signaled that all inadequate government inspections are immune from litigation, Herd said, "That's the suggestion and that's why this decision is so troubling."

The Ethan Allen was carrying 47 tourists, most of them senior citizens, and one crew member. After Thursday's decision, James Hacker, the Latham-based attorney for the families, told the Times Union: "What this means for New Yorkers is when the state is certifying with inspectors and doing inspections ... you have no protection."

The decision noted that a bill introduced in the Assembly would require public vessels operating in New York to carry marine protection and indemnity insurance. The bill would mandate a minimum $1 million liability insurance per incident. No certificate of inspection permits could be issued without proof of insurance to inspectors.

"We note that such a requirement — had it existed — might have been able to provide a modicum of relief here," the ruling stated.

Jean Gerbini, an Albany attorney who chairs the Torts, Insurance & Compensation Law Section for the New York State Bar Association, said marine insurance is more limited and far less comprehensive than the type of coverage offered for automobiles.

She said it could provide some relief and was better than nothing, but $1 million minimum offered a limited amount for potential victims to receive.

The bill, sponsored by Assemblyman Robin Schimminger, an Erie County Democrat, advanced to the Assembly floor in May but did not come up for a vote. It has no sponsor in the Senate, leaving it no chance to pass at present.

It's been seven years since the Ethan Allen sank in Lake George. The 47 passengers aboard the small vessel had traveled from Michigan and Ohio for a leaf-peeping trip. Twenty travelers died. The accident led to investigations and changes in state law regulating public vessels carrying passengers on New York's waterways.

This is a timeline of events since the worst maritime accident in Capital Region history 86 months ago.